Opinion
No. 10103.
February 3, 1923.
Appeal from Tarrant County Court; W. P. Walker, Judge.
Action by Morris Co. against M. D. Galloway and others. From a judgment for plaintiff, defendants appeal. Affirmed.
Mays Mays, of Fort Worth, for appellants.
C. E. McGaw, of Fort Worth, for appellee.
Morris Co. sued M. D. and P. E. Galloway for debt, and sued out a writ of attachment. Defendants in their answer, and by way of cross-action, pleaded:
"That about the 7th day of July, 1921, plaintiffs in said cause illegally, wrongfully, without probable cause, and willfully, and with the express purpose of vexing, harassing, annoying, and injuring defendants in their business, good will, credit, and good name, willfully, wrongfully, and maliciously caused to be issued an attachment against their place of business in Fort Worth, Tex., and said attachment was levied upon their said place of business as aforesaid, and such action was published and made known through Fort Worth and vicinity, where defendants were engaged in business, whereby their business, good name, reputation, and credit was damaged in the sum of $500," etc.
The final prayer is perhaps sufficiently full to justify the recovery of actual and exemplary damages, too. At any rate, appellants state in their brief that they asked for actual and exemplary damages. Upon the trial defendants admitted the justness of the debt, and the cause was submitted to the jury on special issues, upon the defendants' cross-action, and the jury found:
(1) That at the time of the issuance of the writ the defendants were not about to convert their property, or a part of it, into money for the purpose of placing it beyond the reach of their creditors.
(2) That a person of "reasonable prudence, situated in the position of plaintiffs at the time," would have concluded that the defendants were about to convert their property into money for the purpose of placing it beyond the reach of their creditors.
(3) That the plaintiff did not willfully and maliciously procure the issuance of the writ for the purpose of injuring and harassing the defendants, nor did the plaintiff procure such issuance without probable cause.
(4) That by reason of the issuance of the writ, and the levy thereof, the defendants were injured by loss of credit and loss of business in the sum of $1.
Upon this verdict the court entered judgment for plaintiff for its debt, with interest, and all costs, and decreed that defendants take nothing by reason of their cross-action. The defendants have appealed.
No statement of facts is in the record. The grounds of complaint urged by appellants are: (1) The court erred in rendering judgment for the full amount of the debt, and should have rendered judgment for such amount less $1, and should have adjudged the costs of the issuance of the writ against plaintiff. (2) The court erred in submitting the question of whether in procuring the writ of attachment plaintiff acted as a person of reasonable prudence. (3) The court erred in submitting the issue of whether plaintiff in procuring the issuance of the writ intended to injure the defendants, and acted without probable cause. (4) That the court erred in foreclosing the attachment lien, and that the judgment should have been against the bondsmen in replevin. That on account of such replevin no right existed to foreclose the attachment lien.
Certainly it was not error to submit the two issues mentioned, inasmuch as defendants were asking for exemplary damages. While, where an attachment is based upon an affidavit in fact untrue, though there was probable cause for its issuance, the defendant is still entitled to recover for any actual damages suffered (Yarborough v. Weaver, 6 Tex. Civ. App. 215, 25 S.W. 468, and cases there cited), yet the good faith of the attaching creditor is involved where exemplary damages are sought (Carothers v. McIlhenny Co., 63 Tex. 138; Jacobs, Bernheim Co., v. Crum, 62 Tex. 401). Hence we overrule these two assignments.
Loss of credit is held not to be the basis for the recovery of actual damages. Traweek v. Martin-Brown Co., 79 Tex. 460, 14 S.W. 564; Wallace v. Finberg, 46 Tex. 35. It will be remembered that the issue submitted to the jury was whether, by reason of the issuance and levy of the attachment, "defendants were injured by loss of business and loss of credit." Even if loss of business is a basis for the recovery of actual damages, yet, in the absence of a statement of facts, we must indulge the presumption that the evidence did not sustain the recovery as to a loss of business. But 2 R.C.L. p. 911, art. 123, says:
"And, according to the weight of authority, mental suffering, sickness, injury to the character, or humiliation, as well as injury to credit, or loss of business, are elements too speculative to be considered in assessing damages sustained by the wrongful suing out of an attachment."
To the same effect is 4 Cyc. p. 881. Kirbs Spies v. Provine, 78 Tex. 353, 14 S.W. 849, holds that loss of business occassioned by the wrongful seizure of goods under attachment is not an element of actual damages, but may be recovered in exemplary damages. See Kaufman v. Armstrong, 74 Tex. 65, 11 S.W. 1048. Therefore we must conclude, under the decisions of our Supreme Court, at least, that the $1 awarded to defendants was awarded, as a matter of law, in the way of exemplary damages. Since no exemplary damages can be recovered in the absence of a finding for actual damages, it follows that the trial court did not err in refusing to consider the finding of the jury that defendants had suffered injury to the extent of $l in loss of credit or loss of business by the issuance of the writ of attachment.
Only one more question may be noticed, i. e., as to the alleged error in foreclosing the attachment lien, and in not awarding against the sureties on the replevin bond. No replevin bond appears in the transcript, and, there being no statement of facts, we cannot presume that one was given. Moreover, the decisions support the conclusion that the trial court may foreclose the attachment lien as well as render judgment on the replevin bond. Atkinson v. Witte (Tex. Civ. App.) 54 S.W. 611, and causes there cited; Coopwood v. Wofford (Tex. Civ. App.) 219 S.W. 504: Green v. Hoppe (Tex. Civ. App.) 175 S.W. 1117. Moreover, inasmuch as defendants acknowledged in open court by plea that they owed the debt for which plaintiff sued, it would appear that they are in no position to complain that their property is subjected to the payment of the judgment awarded, rather than that of the bondsmen on the replevin bond.
All assignments are overruled, and the judgment is affirmed.